The concept of ownership is one of the fundamental juristic concepts common to all systems of law. The concept of ownership seems to have come into being when the society changed from nomadic to agricultural.
Roman Law:
In Roman law possession and ownership were recognized as two separate and distinct conceptions. In Roman law, a distinction was made between “dominium: domination” and “possession: possession.” The term dominium denotes the absolute right to a thing while possessio indicated only a physical control over the thing which had as such no legal consequences in the early law. They gave more importance to ownership because in their opinion it is more important to have absolute right over a thing than to have physical control over it.
Hindu Law:
In ancient Hindu law also possession and ownership were two distinct conceptions. Ancient law-givers Manu and Yajnavalkya laid down that the possession of the immovable for 20 years and of movable for 10 years gives Title by prescription. Regarding law about ‘sale without ownership, Katyayana in Vivadratnakara said: “If a man lost this chattel and discovers it in the possession of someone else, then he should, first of all, prove by means of witnesses and other evidence, ownership of that chattel.” These arguments confirm that possession and ownership were two distinct and separate conceptions and a long possession “prescription” could ripen into ownership. The ancient law of ‘prescription’, ‘bailment’ and ‘sale without ownership’ was based upon this distinction.
English Law:
Under the feudal system, the land was held in return for service. The holding of land was known as ‘seisin’. The seisin was a right which was relied upon to get back the possession. If the person seised was dispossessed. It was a right to the possessor. The claimant succeeded only it he proved a better right to possess than the possessor. This shows that English law also had a clear distinction between the possession and ownership. The known use of the word ‘Owner’ was made in 1340 and of ‘Ownership’ in 1583.
Relationship of Person to an Object:
The relation of a person to an object can be of the following kinds.
Custody:
It is a relation of a person to an object in which he has no full control over the thing, in other words, he has no required animus to exclude others. For example, a customer examining a piece of cloth in a shop before the shopkeeper who has only custody of that cloth.
Detention:
It is a relationship where a person has in fact possession over a thing but law due to certain reasons do not recognize it as a possession. For example, a servant has the detention over things of his master with him.
Possession:
It is a relation of a person to an object which law recognizes as a possession.
Ownership:
It is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the ‘owner’ and he has a right of complete control and enjoyment of the object.
The bundle of rights of a person over a thing confers him the ownership of the thing, and the control exercised by the person over the thing makes things a property of that person. Thus the idea behind the ownership and property are fundamentally the same and the ownership and property are the two aspects of the same relation
Defining Ownership:
Jurists have defined ownership in different ways. All of them accept the right of ownership as the complete or supreme right that can be exercised over anything.
According to Hibbert ownership includes four kinds of rights within itself.
- Right to use a thing;
- Right to exclude others from using the thing;
- Disposing of the thing;
- Right to destroy it.
Thus, Hibbert Suggests that no one can have absolute ownership in the land as and the land is not capable of being destroyed. One can merely have an estate in it. An estate being defined as the legal interest of a party in the land measured by duration and entitling the party to put the land to use of an indefinite nature. According to him in movables, one can have absolute ownership since one can destroy them.
According to Holland ownership is plenary control over an object. The meaning of the phrase “planetary control over an object” is a complete control unrestricted by any law or fact. According to him, an owner has three rights on the subject owned.
- Possession
- Enjoyment
- Disposition
According to Holland the right of disposition implies the right of alteration, destruction or alienation of property.
According to Austin, ownership is a right over a determinate thing, indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration. Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
- Indefinite User
- Unrestricted Disposition
- Unlimited Duration
According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It consists of complex of rights, all of which are rights in rem, being good against all the world, and not merely against some persons. Thus according to Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others.
In Salmond’s view, ownership exhibits the following incidents:-
- An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
- He has normally the right to use and enjoy the thing owned;
- The owner has a right to consume, destroy or alienate the thing;
- Ownership has the characteristic of being indeterminate in duration;
- The owner has a residuary character.
A noteworthy jurist from Austria has analyzed the concept of ownership from his “Marxist” view. According to Renner, in medieval times ownership consisted of the relation between man and things. After industrial revolution “ownership” has become a relation between a man and complex aggregate of things termed “capital”
Analysis of Austin’s Definition:
According to Austin, ownership is a right over a determinate thing, indefinite in point of the user, unrestricted in point of disposition, and unlimited in point of duration. Austin while defining ownership has focused on the three main attributes of ownership, namely, indefinite user, unrestricted disposition and unlimited duration.
- Indefinite User
- Unrestricted Disposition
- Unlimited Duration
Indefinite Use:
It means that the owner of a thing is free to use or even misuse the thing in the manner he likes. The use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-
- The owner of a thing cannot be allowed to use the thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
- The ownership may be subject to encumbrance in favour of others in which case the power of the user of the owner is curtailed by the rights of the encumbrance.
- The state officials have a right to enter the owner’s premises in pursuance of a warrant issued by a court or for any lawful purpose.
Unrestricted Disposition:
The right of disposition implies the right of alteration, destruction or alienation of property. According to Austin an owner of a tiling has unrestricted right to dispose it off in a way he likes. Thus, he regards the right of alienation as a necessary incident of ownership. Again the use of the word ‘‘indefinite” has some restrictions. The owner can be restricted by agreements or by operation of law, such as:-
- The owner of a thing cannot be allowed to dispose off thing in a manner which is injurious to others. This is expressed by the maxim, “sic utere tuo, ut alie-num non laedas” which means “so use your property as not to injure your neighbours’’
- The ownership may be subject to encumbrance in favour of others in which case the power of the disposition of the owner is curtailed by the rights of the encumbrance.
- Legal restrictions may hamper the unrestricted disposition of the property.
- An owner of the property is not allowed to dispose of the same with a view to defect or delay his creditors.
- There are certain disabilities imposed on infants and lunatics with regard to the disposal of property.
Mitakshara school of Hindu law does not allow alienation of ancestral immovable property without the consent of the coparceners except for legal necessity. In Germany, a division of small farms beyond a particular limit is not permissible.
Unlimited Duration:
According to Austin the time of ownership is unlimited in point of duration. The right shall exist so long as the owner and the thing exists. It is a perpetual interest which shall devolve upon the heirs of the owner after his death, but the right shall not be extinguished.
The abolition of Zamindari system India, the abolition of privy purses, nationalization of Bank, etc. are some examples of the fact that the ownership can be cut short by the state for a public purpose and its duration is not unlimited.
Criticism to Austin’s Definition:
- It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate of the sum-total of the rights of user and enjoyment. Even if some of the rights are removed and given to another person, the person in whom vests the residue is still the owner. The owner of a piece of land may mortgage or leases the same to another person. Although he has transferred a right, he is still the owner.
- Ownership is not merely a right but also a relationship between the right owned and the person owning it.
- The idea of the right of the indefinite user is also attached with some restrictions as discussed above. Many limitations can be put upon that user.
- The idea of unlimited duration is also attached with some restrictions as discussed above. The ownership can be cut short by the state for a public purpose and thus duration is not unlimited.
Analysis of Salmond’s Definition:
According to Salmond, ownership denotes a relation between a person and an object forming the subject-matter of his ownership. It consists of complex of rights, all of which are rights in rem, being good against all the world, and not merely against some persons. Thus according to Salmond ownership vests in the complex of rights which he exercises to the exclusive of all others.
In Salmond’s view, ownership exhibits the following incidents:-
- An owner shall have a right to possess the thing which he owns. He may, however, not be necessarily in actual possession of it;
- He has normally the right to use and enjoy the thing owned;
- The owner has a right to consume, destroy or alienate the thing;
- Ownership has the characteristic of being indeterminate in duration;
- Owner has a residuary character.
Criticism to Salmond’s Definition:
- Diguit has criticized Salmond’s definition of ownership and asserted that what a person really owns is a “thing” and not a right. It is, however, submitted that Salmond comprehends ownership in corporeal and incorporeal rights. Thus a man may own the copyright or a right of way. In this sense, he owns a right and not merely the material objects.
- According to Kocourek, ownership is a relationship between the owner and a right to a thing, which can be economically enjoyed. The right of ownership is a matter of legal protection